FSGB Case: When “there were no mitigating circumstances” considered despite conditions identified by MED

 

Via FSGB: FSGB Case No. 2019-034, July 2, 2020
Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).
Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.” The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing. The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

[…]

We do not claim medical or psychological expertise, but, in our perusal of the record, we found indicators that the charged employee was described as exhibiting personality problems, and possibly more serious mental impairment or illness, from the emails and text messages he sent to former colleagues. For example, in specification 84, the charged employee is charged with offering to help Ms. B draft a complaint and get himself fired and committed to a mental hospital for the rest of his life. Also, in specifications 86 and 87, respectively, the charged employee is alleged to have first made reference to someone wanting him to commit suicide, then later noted asking God if his wife would commit suicide and informing Ms. D that the Virgin Mary told him to inform Ms. D that he knew she was worried that he might kill himself. Further, the charged employee displayed unusual behavior when he emailed Ms. B on June 6, 2017 at 8:31 p.m. that he had declined to see a psychiatrist before consulting attorneys about his options to file a lawsuit.11 That suggests the possibility that someone raised with the charged employee the matter of seeking a psychological consultation or examination.
In addition, DS ROI #1 included a statement by the charged employee’s wife that she believed her husband suffered from mental impairment, requiring medical treatment. The record further contains evidence, according to the spouse, that MED had conducted a thorough mental health evaluation of the charged employee on four separate dates. Similarly, DS ROI #2 concluded that the charged employee had expressed that he heard voices and instructions from God, the Devil, and the Virgin Mary. (See Specifications 6-8, 25, 29, 38, 76 and 87).
[…]
In the instant case, while the agency has provided credible evidence that the charged employee’s conduct does not promote the efficiency of the Service, we find the decision falls short on consideration of so-called Douglas Factor #11 on the agency’s checklist that relates to personality problems as a mitigating factor. We also credit the charged employee’s 19 years of distinguished service before his display of conduct that gave rise to the LOR and the proposal to separate him from the Service.12
Moreover, the Board is unaware of a requirement that a DO must be privy to private medical information or be a medical professional to initiate an application for disability retirement. To the contrary, under 3 FAM 6164.2-3, HR/ER, in consultation with MED, can initiate an application for disability retirement on behalf of an employee if, inter alia, 1) the agency has issued a proposal to remove the employee, 2) the agency has a reasonable basis to conclude that illness may be the cause of the employee’s conduct which renders him unable to work satisfactorily, or 3) the employee is incompetent and there is no guardian willing to file an application on the employee’s behalf. The existence of any one of these three conditions is sufficient for the agency to initiate an action for disability retirement, and the Board finds that the conditions in 1) and 2), supra, are apparent in this case.
Accordingly, the Board is of the view that the agency has not considered all mitigating factors before recommending separation for cause and has not exercised its authority to initiate, as an alternative to separation, the option of a disability retirement for the charged employee where grounds for such a retirement are apparent on the record. Pursuant to 3 FAM 6164.3(a), MED then would determine whether the charged employee is incapacitated for useful and efficient service, which is the standard for disability retirement.

Advertisements

@StateDept Did Not Comply With Americans With Disabilities Act (ADA) Requirements

 

Via FSGB: FSGB Case No. 2018-003
HELD – The Board granted grievant’s appeal, finding that the U.S. Department of State (Department) did not comply with the requirements of the Americans With Disabilities Act (ADA) when it failed to provide grievant with a reasonable accommodation for her disability. The Board directed, among other things, that the parties engage in the interactive process required under the ADA to determine a reasonable accommodation.
SUMMARY – Due to a lengthy illness with cancer grievant, while serving on a limited noncareer appointment in the consular skill code, did not receive an Employee Evaluation Report (EER) from an overseas posting. A Commissioning and Tenure Board (CTB) deferred a decision on tenure until she was able to be appraised on her performance at an overseas posting. The Department assigned grievant to an overseas posting to enable her to receive such an EER. However, as a consequence of her chemotherapy, grievant experienced neuropathy in her hands, and she developed an allergy to nickel. Accordingly, she requested that she be permanently reassigned assigned to the economic skill code, which she said would require handling a smaller volume of materials. The Department denied that accommodation request but did provide her with special office equipment that it said would address her nickel allergy. Grievant continued to experience neuropathy during her overseas assignment and was medically curtailed from post without receiving an EER. As a result, her next CTB recommended that she not receive tenure, and the Department terminated her appointment. The Board held that the Department failed to meet the requirement under the ADA and Department regulations to engage with an employee with a qualifying disability, such as grievant, in an “interactive process” to determine a reasonable accommodation. Although grievant’s request to be permanently reassigned to another skill code would be a “last resort” under Department regulations, that did not relieve the Department of the duty to consider other options such as assigning grievant to positions in the consular skill code that did not involve processing large numbers of passport and visa applications. Further, the Department had an ongoing duty to find a reasonable accommodation when it became clear that the accommodation it did provide was not effective. Accordingly, the Board directed that when grievant was cleared medically to serve in an overseas posting, the parties engage in the interactive process to identify an effective accommodation for grievant’s disability.

 

FSGB 2020-008: Voluntarily Curtail Under Threat of Involuntary Curtailment or a Bad EER

 

Via FSGB 2020-008
Grievant is a tenured FP-02 Diplomatic Security Special Agent assigned as the Regional Security Officer (“RSO”) at U.S. Embassy [REDACTED] from June 2, 2017 until her involuntary curtailment on May 30, 2019. On July 3, 2019 she filed a complaint with the Department’s Office of Civil Rights (“S/OCR”) alleging sex, disability and age discrimination and reprisal for prior protected activity. In her S/OCR complaint dated July 3, 2019, she alleged 10 separate incidents of discrimination or reprisal by her rater, the Deputy Chief of Mission (“DCM”). She also alleged that at a May 8, 2019 meeting with the Ambassador (her reviewer), the rater and other senior officials, the Ambassador asked her to voluntarily curtail. When she refused, her rater informed her that her Employee Evaluation Report (“EER”) from April 16, 2018 to April 15, 2019 would contain a negative review statement. She ultimately declined to voluntarily curtail.
[…]
Grievant’s recitation of the facts – the underlying transactions – are contained in her agency filing as she has not yet filed her supplemental submission where she would have an opportunity to refine further her claims and remedies. In that filing, she provides extensive background chronicling allegations of sex and other forms of discrimination by her rater, the DCM. She also describes in detail four instances in which she invoked the displeasure of the Ambassador, her reviewer, for raising concerns that his actions or proposed actions constituted security risks. She then describes the removal of laudatory language in the draft rater’s statement and the circumstances surrounding her involuntary curtailment where she claims the DCM threatened to insert a negative reviewer’s statement into her previously drafted EER. She attributes both of these actions to retaliation for informing the DCM that she was initiating S/OCR proceedings.
From footnote, p.9:
“In stating I was going to seek EEO counsel and AFSA guidance related to discrimination I faced from the DCM, as I believe there were reprisal protections in place, I never envisioned I would face retaliation in the form of an involuntarily curtailment. It was only after I stated I was going to seek EEO counseling and AFSA guidance related to the DCM’s changes to the rater statement and then my refusal to voluntarily curtail under threat of involuntarily curtailment that a review statement which contained alleged performance issues materialized in retaliation for not acquiescing to the Front Office’s discrimination and reprisal.”
The FSGB Board issued the following order:
“… the Department’s Motion to Dismiss is denied in its entirety. Since the Department did not consider grievant’s claims on the merits, the Board remands the case to the Department for a decision on the merits. The Department should advise the Board of its decision not later than 45 days from the date of this order. Pending that decision, the Board retains jurisdiction of the case. Once the Department’s amended decision has been issued, grievant will have 60 days to amend her grievance appeal to the Board. In the meantime, the proceedings before the Board are stayed. The timeline for discovery will start anew when grievant files her amended appeal or advises the Board that no such amended appeal will be forthcoming.”
The FSGB files are not readable online; the files have to be downloaded first. Click here and locate FSGB 2020-008 from “Decision and Orders 2020” to read the full Motion to Dismiss order.

Domestic Assault, Reporting Requirement Under 2 FAM 272, and a Troublesome Comma

Posted: 4:22 am ET
[twitter-follow screen_name=’Diplopundit’ ]

This is a grievance case about a domestic assault, an arrest, and a punctuation:

Grievant is a tenured FP-02 Financial Management Specialist, employed by the Department of State as a Regional Financial Management Officer at the REDACTED at the Executive Office of the REDACTED. He has been employed by the Department since 1997, serving both overseas and domestically.

On June 29, 2013, grievant was arrested in REDACTED on a charge of domestic assault against his wife. Grievant’s former wife reported this arrest to the Department; however, when grievant’s current spouse told authorities that the incident was a misunderstanding, the charges were dropped on July 22, 2013. On August 6, 2013, the Department of Diplomatic Security (DS) obtained a copy of the arrest report and began investigating grievant’s failure to report the incident.

DS issued a Report of Investigation (ROI), dated January 14, 2014 and on December 12, 2014, the Director of the Office of Employee Relations (HR/ERCSD) notified grievant of a proposal to suspend him for a period of five (5) calendar days without pay on a charge of Failure to Follow Policy, citing 12 FAM 272. Grievant submitted a written response to the proposal on February 20, 2015, claiming that he did not realize that he had to report the arrest because the regulation is not clear. In any event, he claimed, the arrest was reported by his ex-wife and the charges were dropped within weeks of the arrest. Finally, he claimed that the penalty was too harsh, in light of his confusion about the mandate. After reviewing grievant’s response, the Deciding Official concluded that grievant knowingly failed to report his arrest immediately after it occurred and that he was on notice of his obligation to report the arrest, both because of the “clarity” of the regulation and because grievant had previously made a mandatory report under this same provision in 2010. In the end, the Deciding Official did not credit the reasons offered by grievant and sustained the charge on April 3, 2015.

Grievant argues that the wording of 12 FAM 272 is “far from clear.” He contends that the Department’s construction of the regulation is unfair because it relies on either removing or ignoring punctuation that totally changes the meaning of the provision.

12 FAM 272 states in pertinent part:

b. Employees must immediately report information of a potentially . . . derogatory nature . . . concerning their . . .

(2) Adverse involvement with law enforcement agencies to include:

(a) Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed, or
(b) Arrests for “driving under the influence” [DUI] or “driving while intoxicated [DWI].

c. Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

[…]
The Department argues that 12 FAM 272 b should be interpreted to require disclosures by cleared employees of any and all arrests, including two traffic offenses — DUI and DWI. The only exception to this rule of mandatory disclosure, according to the Department, is that an employee is not required to disclose “minor traffic violations for which a fine or forfeiture of $150 or more is imposed.”

The agency contends that this regulation required grievant to disclose the fact of his arrest for domestic assault because it was not for a minor traffic violation. The Department concedes that “the specifics of 12 FAM 272(b) could be more precisely worded,” and “the wording of 12 FAM 272(b) could be improved,” but insists that grievant had sufficient notice that he was  required to report his arrest. The Department lastly argues that under both sections 272 b and 272 c, grievant should have reported his arrest immediately, that is, within 72 hours of his “adverse involvement with law enforcement.”

Here is the full section of the Foreign Affairs Manual:

12 FAM 272  REPORTING ADVERSE FINANCIAL SITUATIONS AND CERTAIN ARRESTS
(CT:DS-143;   02-12-2009)

a. Employees should use good judgment and discretion in recognizing and avoiding situations and/or behavior that would call into question their judgment, reliability, and trustworthiness to safeguard information and to hold a position of trust and responsibility.

b. Employees must immediately report information of a potentially derogatory nature to the Director, Office of Personnel Security and Suitability (DS/SI/PSS) concerning their:

(1)  Wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy; or

(2)  Adverse involvement with law enforcement agencies to include:

(a)  Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed; or

(b)  Arrests for “driving under the influence” or “driving while intoxicated.”

c.  Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

d. Employees with information they believe may have a bearing on another individual’s eligibility for access to classified information, as listed in 12 FAM 233.2, should report that information to the Director, DS/SI/PSS.

e. Reporting pursuant to this section should be in writing and directed to the Director, DS/SI/PSS, and may be either faxed to (571) 345-3191 or sent by mail to DS/SI/PSS, Attn: Director, 11th floor, SA-20.  Reports may also be emailed to DSDirectorPSS@state.gov.

f.  Cleared contractors must report information listed in paragraphs b, c, and d of this section to the Industrial Security Division (DS/IS/IND).  See 12 FAM 576.4 for additional adverse information reporting requirements.

The FSGB disagrees with the Department interpretation:

The critical language is “[a]rrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed. . . .” The Department argues that this language should be interpreted as if the second comma were not there. That is, the agency would have us read the provision to require disclosure of: “(a) [All] arrests, other than minor traffic violations for which a fine or forfeiture of $150 or more was imposed. . . .” We find that while this may have been what was intended, the first rule of statutory construction is to give the words of the enactment their plain and ordinary meaning, presumably as punctuated, unless there is a clear contrary intent expressed.
[…]
We conclude that whatever the intent of the drafters, a clear delineation of what arrests are required to be reported was not captured in the language of the section 272 b(2)(a). We also conclude that both parties’ interpretations leave serious questions about which arrests were intended to be disclosed and which ones did not have to be reported.

12 FAM 270 was last updated on March 9, 2015.

Read the FSGB case below:

#

Senator Grassley Eyes Linda Howard Case, Seeks Answers on TIP Policy and @StateDept Employees

Posted: 1:45 am EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

On October 20, 2011, State/OIG issued a report entitled Audit of Bureau of East Asian and Pacific Affairs Compliance with Trafficking in Persons Requirements (AUD/IP-12-02 – pdf). The audit found that Department employees were not uniformly aware of key matters relating to Trafficking in Persons (TIP), including what constitutes TIP activity, the penalties for TIP violations, and where to report allegations of violations. The OIG report notes that although the Department’s code of conduct prohibited employees from acquiring a commercial sex act and using forced domestic labor, it did not specifically address TIP or require employees to report suspected TIP violations.

Based on the report’s findings, OIG made four recommendations to State’s J/TIP. Of these four recommendations, OIG closed Recommendation 3 on July 23, 2013, based on the Department’s decision to designate OIG to receive reports of TIP violations. However, according to its follow-up report of September 2015 (pdf), the other two recommendations —  enclosure of the U.S. Government’s TIP policy in the Department’s Foreign Affairs Manual (FAM), and an expanded code of conduct for employees to cover conduct with respect to TIP activities — remained open.

State/OIG concludes that “by not implementing the recommendations or J/TIP providing an acceptable alternative to fulfill the intent of the open recommendations, the Department is not well-positioned to hold employees accountable for violations of TIP or ensure TIP policies and requirements are understood and followed.”

We missed this — but in September when State/OIG released the follow-up report(officially called Management Assistance Report) related to TIP, Senator Chuck Grassley also fired off a letter to Secretary Kerry asking questions sepcific not just to the OIG report but also the Linda Howard case (see Ex-State Dept Employee Settles Housekeeper’s Claim Over Slavery and Rape).

According to Senator Grassley’s letter, the Howard case “raises questions about the Department’s commitment to holding itself to the same standard by which it judges other countries in assessing their compliance with anti-trafficking standards in its annual TIP report.” Hey, we made it to the footnotes!

Screen Shot 2015-11-15

(click image to read the Grassley letter or click 2015-09-17 CEG to State (Trafficking in Persons)

Among the questions Senator Grassley asked Secretary Kerry are the following:

  1. Regarding the two TIP-related OIG recommendations that remain outstanding since 2011:
    1. Why did the Department fail to implement these recommendations?
    2. Who is responsible for the failure to implement them?
    3. Was former Secretary Clinton or any of her aides including Cheryl Mills, HumaAbedin, or Jake Sullivan informed of any of these recommendations, decisions, or findings? If so, please provide all related records, including emails. If the Secretary and her senior staff were not informed, please explain, why not.
  2. How does the Department ensure that its foreign service officers treat the domestic workers they hire or sponsor in accordance with the TVPA?
    1. As of the date of this letter, how many domestic workers are employed by Department employees worldwide?
    2. Do Department employees stationed abroad need to obtain approval from the Chief of Mission, the Regional Security Officer (RSO), or any other Department official before recruiting and hiring domestic workers? If so, whose approval is needed and what controls exist to ensure the security and safety of those workers as well as national interests? If not, why not?
    3. Is there an independent and confidential reporting mechanism by which these domestic workers may file a complaint with the Department for alleged abuses by Department employees? If not, will you consider adopting such a mechanism?
    4. Do you think implementing OIG’s 2011 recommendations would help Department employees identify and report suspected instances of TIP violations that may be occurring within their own ranks and housing complexes?

The senator is also asking questions specifically related to the State Department’s handling of the Howard case including:

— Did DS or the Department refer these allegations to any other entity, such as the OIG, or any other law enforcement agency? If so, on what date and to whom?

— At any point in time, was Under Secretary of Management Patrick Kennedy, who oversees DS, apprised of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, when, and what was his response? Please provide all related records, including emails. If not, why not?

— At any point in time, was former Secretary Clinton or any of her aides including Cheryl Mills, Huma Abedin, or Jake Sullivan informed of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, please provide all related records, including emails. If not, why not?

There is an FSGB grievance case (read online) that may or may not be related to the Howard case (names have been redacted) but the timeframe and circumstances appears similar, and it looks like DOJ declined to prosecute the case in 2011:

REDACTED (grievant) is a twenty-year Foreign Service employee of the Department of State (Department, agency). While assigned to the U.S. Embassy in REDACTED, she and her husband, an REDACTED national, were the subjects of a Bureau of Diplomatic Security (DS) investigation based on allegations by a household worker of sexual abuse and related crimes. This investigation began in June 2009 and ended with a declination of prosecution by the Department of Justice (DOJ) in March 2011.1 Grievant agrees that she curtailed from post in June 2009 for unrelated reasons.

#

Related posts:

Senior FSO Solicits Favorable Comments From Subordinates, Wants GSO “To Grow a Pair”

Posted: 1:53 am EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

An unnamed senior FSO solicited favorable statements about herself from her subordinates and in an email to her supervisor, the DCM, made disparaging remarks that the General Services office “needs to grow a pair.” Both made it to the FSO’s evaluation report which became the subject of a grievance case before the Foreign Service Grievance Board (FSGB Case No. 2014-029).

The FSGB decision: Grievant, has failed to show by a preponderance of evidence pursuant to 22 C.F.R. §905.1 that her 2013 Amended EER documenting her performance while serving as Principal Officer/Consul in contained inaccuracies, omissions, errors, or falsely prejudicial information to such an extent that it must be expunged in its entirety. The appeal is denied in part and granted in part, but only for a remand with instructions to delete one phrase in the Amended EER. No other relief is granted.

Excerpt below:

Grievant is a Senior Foreign Service Officer, class of Counselor (FE-OC). She appeals the Department’s partial denial of her grievance in which she seeks the following relief: expunction from her Official Performance File (OPF) of her 2013 Amended Employee Evaluation Report (EER); extension of her time-in-class by one year; and a reconstituted 2014 SB to consider her file, if in fact she was low-ranked by the 2014 Promotion Board based upon her 2013 Amended EER.

Grievant joined the Foreign Service in 1987 as a Political Officer, and has had tours both overseas and in Washington. She has served in a variety of increasingly senior positions, including Deputy Chief of Mission (DCM)/Charge d’affaires in [REDACTED] Principal Officer in [REDACTED]  and Special Advisor to the Assistant Secretary in the [REDACTED] Bureau in Washington. The recipient of a number of awards throughout her career, she was also recommended for Performance Pay while serving as Principal Officer/Consul General in [REDACTED]. Grievant describes herself alternatively as “autistic” and a person who suffers from a disability known as Asperger’s Syndrome (a condition on what is known as the autism “spectrum”).

The contested statements concern two incidents, the basic facts of which are not in dispute and are summarized below. One incident involved grievant’s solicitation of favorable statements about herself from subordinates. The other incident arose from a remark grievant made to her rater, expressing grievant’s views of her own colleagues and using language that the rater deemed inappropriate.

The Solicitation of Statements from Subordinates. The first incident arose when grievant asked her locally-engaged (LE) assistant to gather from other LE staff written statements in which staff would describe what they liked about grievant, or how they viewed her as a boss. On December 15, 2012, grievant sent an email to her LE assistant asking that “each employee who is able or wants to do so” submit something written stating “if they liked working for me or something they liked about me as a boss.” Grievant asked her assistant (REDACTED) to compile such favorable comments for presentation to the grievant at the time of grievant’s upcoming birthday. In this email, grievant characterized the employee statements as “a gift I can keep with me always.”

When the DCM learned of grievant’s actions, she accused grievant of soliciting a gift from subordinates. The DCM issued a Letter of Admonishment to grievant, citing the email of December 15, 2012 to [REDACTED] asking for a “gift” from subordinates on the occasion of grievant’s birthday.2 In the Letter of Admonishment, the DCM instructed grievant to rescind that request. In an email of January 14, 2013, the DCM transmitted to grievant a copy of the Letter of Admonishment, directing grievant to comply with the instructions in the Letter, and to sign the Letter and return it to her. Grievant responded with a refusal to implement the instructions.

Grievant’s Remarks About Colleagues. The second incident concerns an email grievant sent to the DCM in preparation for a visit by the Secretary of State of [REDACTED]. Locally-engaged [REDACTED] staff would be coming to  [REDACTED] to support the visit. The scarcity of hotel rooms or accommodations for them became a pressing issue. In an email of August 6, 2012, to the DCM, grievant expressed her frustration that [REDACTED] American management staff, the Management Officer, and the General Services Officer (GSO), were not doing enough to secure such accommodations. Grievant wrote, in pertinent part:

For months and even during the current pre-advance, I have been trying to get the people to focus on finding hotel space or working with the government to find hotel space for the support staff. They refused to do so. Instead, they are living under the fantasy that they will be able to force the USG, with less than a month to go, to accredit FSNs as members of the US delegation and they will be able to stay with other members of the US delegation on .

Both you and I know that the USG is not going to accredit FSNs. If you are not accredited, you are not going to sleep on . Even if they want to continue to entertain this fantasy, check out hotels as a plan B. However, MGT says they have a plan B – staying in the Consulate’s non-existent TDY housing (LOL), bunking with Consulate officers (NO!), or sleeping through the night at the Consulate (H$*# to the No!).

One problem is that when the American officers broach the subject with FSNs, the FSNs refuse to look at hotel options, because the FSNs want to be accredited. GSO needs to grow a pair.

The appeal is granted in part and denied in part. Pursuant to the Board’s findings, the sole form of relief granted is that the case is remanded to the Department with instructions to make two modifications to the Amended EER. One, the Department is hereby ordered to delete the words “gift of” in every place in which the Amended EER contains the phrase “gift of positive statements from her direct reports.” Second, the Department is hereby ordered to delete from the section on “Interpersonal Skills” the phrase “and in doing so, did not set the standard for integrity.”

Read in full: 2014-029 06-11-2015 – B – Decision_Redacted (pdf).

#

No Comparator Case For DS Agent With PTSD — Failure to Follow Regs, Lack of Candor Charges Came 2 1⁄2 Years Late

Posted: 3:12 am  EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

This is a case of a DS Agent charged with lack of candor and failure to follow regulations for incidents that took place in 2010 related to his PTSD.   The State Department issued a final decision to  suspend the agent for 12 days.  According to the ROI, the deciding official at the agency level grievance “also considered the mitigating factors and gave grievant credit for having no past formal disciplinary record and a satisfactory work history. The deciding official also noted grievant’s potential for rehabilitation, while recognizing that grievant clearly was embarrassed by his diagnosis of PTSD, and feared that he might be stigmatized by the label, or that he might even lose his job with the Department.”

A couple things striking about this case.  Following grievant’s military service in Iraq in 2006, he started having panic attacks and severe anxiety, for which he was prescribed several medications – none of which he says worked very well. His symptoms became worse over time. In 2009 he was diagnosed as having Post Traumatic Stress Disorder (PTSD).  The incidents that ultimately led to the two charges occurred in November 2010; yet the Department did not propose disciplinary action until April 24, 2013 – a span of 29 months. The ROI does not explain the delay.

Grievant reportedly denied during the interviews with that he had been diagnosed with PTSD, saying instead that he had been treated for anxiety and panic attacks. And yet, according to the ROI, grievant avers that “he discussed his PTSD diagnosis in considerable detail with the DS investigators, and authorized release of his medical records.”

Grievant admits he did not comply with Department regulations requiring him to report that he had been prescribed psychiatric medications, but claims he was unaware of the policy requiring him to do so. He claims that he was not alone in being unaware of this requirement, as many other DS officers to his knowledge were also unaware of the regulation.

Since grievant is a DS agent, the Department has also cited 12 FAM Exhibit 023 2.5, its Deadly Force and Firearms Policy (which we can no longer read online, as it’s now behind the firewall). 12 FAM Exhibit 023 section 2.5 12 FAH-9 H-030 appears specific to prescription medication.  The State Department showed, and the FSGB agreed that there are no similar cases that presented the same set of circumstances as in this grievant’s case.

The Board held that grievance be granted in part and denied in part. The Board remanded the case to the Department to consider an appropriate penalty in view of their decision not to sustain two specifications of one of the two charges.

Summary:

Grievant faces two charges – Lack of Candor and Failure to Follow Regulations – that were leveled against him because of statements he made during a Department investigation about incidents that took place while he was in the U.S. on leave in 2010. He is a Diplomatic Security Special Agent who was admitted to the hospital on two occasions (on consecutive days) after he drank alcohol heavily and took an unknown quantity of prescription medications after he became upset about the breakup of his engagement to be married. The investigation revealed discrepancies between the information grievant gave to investigators and that found in his medical records. Records show that grievant suffers from PTSD and that he had not reported this fact to the Department. The investigation report claims that grievant denied during interviews that he had ever been diagnosed with PTSD or that he was ever in a treatment program to address the condition. His records also show that he had been prescribed several psychiatric medications, and contained no evidence that grievant had reported to the Department either the PTSD diagnosis, or the prescription medicines which are required to be reported under the agency’s Deadly Force and Firearms policy. The Department’s final decision provided for a 12-day suspension without pay.

Grievant denies the majority of the specifications cited in the charges. He claims to have discussed his PTSD diagnosis in detail with the investigators and avers that he responded candidly to all of the questions posed to him during two DS interviews. He admits that he did not report the prescription medicines, but argues that he was unaware he needed to do so. Grievant also claims that the charges are untimely, having been brought after a very long delay – nearly 2 1⁄2 years after the incidents, and that the delay has prejudiced his ability to present his case. He claims to have been particularly disadvantaged in that he is unable to find witnesses who could corroborate his positions or shed light on the quantity of medications he took prior to the 2010 incidents. He also argues that the proposed penalty, in any case, is overly harsh in light of penalties the Department has imposed for like offenses. He requests that those charges/specifications the Department is unable to establish should be overturned, and the 12-day suspension should be mitigated.

Click on the image or the link below to read ROI in pdf file. The file is redacted and originally published online by the Foreign Service Grievance Board.

2014-020 - 04-29-2015 - B - Interim Decision_Redacted-2-02

FSGB Case 2014-020 – 04-29-2015 – B |DS Agent – PTSD Case                         (click image to read in pdf)

2014-020 – 04-29-2015 – B – Interim Decision_Redacted-2

The regs apparently say that “a DSS Special Agent who is taking prescription medication to notify his supervisor and submit a medical certificate or other administratively acceptable documentation of the prescription … to the Domestic Programs Division of the Office of Medical Services immediately after beginning the medication.” We don’t know what happens to DS agents who self report as required by regulations.  Are their USG-issued weapons removed? Are they subject to reassignment? Is there a perception that this is an embarrassment?

Given that many Diplomatic Security personnel have now done multiple tours to war zones and high threat posts, is this really an isolated case of not self-reporting both the PTSD diagnosis and the use of prescription medication?

We sent this individual to Iraq in 2006. He came back with unseen wounds. And here he is in 2015, still fighting his battle.   What can the State Department do to make employees with potential PTSD less fearful of being stigmatized in coming forward and acknowledging they need help? What can the Bureau of Diplomatic Security do more for its agents? How can this be made into a less lonely fight?

#

The Cautionary Tale of Raymond Maxwell: When the Bureaucracy Bites, Who Gets The Blame?

— Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]

 

Last week, we posted a Snapshot: State Dept Key Offices With Security and Related Admin Responsibilities and wondered why Raymond Maxwell’s former office as Deputy Assistant Secretary at the NEA Bureau did not get an organizational box. Our readers here may recall that Mr. Maxwell was one of the bureaucratic casualties of Benghazi.  Diplomatic Security officials Eric Boswell, Charlene Lamb, Steve Bultrowicz and NEA official, Raymond Maxwell were placed on paid administrative leave on December 19, 2012 following the release of the ARB Benghazi Report. On August 20, 2013, all four officials were ordered to return to duty. Mr. Maxwell officially retired from the State Department on November 30, 2013. Prior to his retirement he filed a grievance case with HR where it was denied and appealed the case to the Foreign Service Grievance Board where it was considered “moot and thus denied in its entirety.”

Our blog post last week, also received the following comment from Mr. Maxwell:

“[M]y grievance was found to have no merit by HR, and earlier this month, the FSGB found that the State Department made no errors in the way I was removed from my position, shamed and humiliated in the press, and placed on admin leave for nine months, Further, the FSGB found that I was not entitled to the public apology I sought in my grievance because I had retired. I have two options now. I can spend a great deal of money suing the Department in local courts, or I can let it go and move on with my life. My choice of the latter option neither erases the Department’s culpability in a poorly planned and shoddily executed damage control exercise, nor protects future foreign service officers from experiencing a similar fate. There is no expectation of due process for employees at State, no right to privacy, and no right to discovery.”

We spent the weekend hunting down Mr. Maxwell’s grievance case online; grievants’ names are redacted from the FSGB cases online. When we finally found it, we requested and was granted Mr. Maxwell’s permission to post it online.

The Maxwell case teaches us a few hard lessons from the bureaucracy and none of them any good. One, when you fight city hall, you eventually get the privilege to leave the premises. Two, when you’re run over by a truckload of crap, it’s best to play dead; when you don’t, a bigger truckload of crap is certain to run you over a second or third time to make sure you won’t know which crap to deal with first. But perhaps, the most disappointing lesson of all — all the good people involved in this shameful treatment of a public servant  — were just doing … just doing their jobs and playing their roles in the proper functioning of the service. No one stop and said, wait a minute …. They tell themselves this was such a  sad, sad case; they feel sorry for how “Ray” was treated. It’s like when stuff happens, or when it falls — se cayó. No one specific person made it happen; the Building made them do it. The deciding officials apparently thought, “This was not an easy matter with an easy and obvious resolution.” Here — have a drink, it’ll make you feel better about looking the other away.  See he was “fired” but he wasn’t really fired.  He was prevented from entering his old office, and then not really. Had he kept quiet and did not write those poems …who knows, ey …

We’re embedding two documents below –1) Maxwell’s FSGB case, also available online here (pdf); and 2) an excerpt from the Oversight Committee report that focused on Mr. Maxwell’s  alleged “fault” over Benghazi. Just pray that this never happens to you.

 

 

Below excerpted from the House Oversight Committee report on ARB Benghazi:

 

* * *

 

 

 

 

 

 

 

 

CyberSecurity Month PSA: Installing Mozilla Firefox Could Be Hazardous To Your Career …

— By Domani Spero

On September 30, President Obama proclaimed October 2013 as National Cybersecurity Awareness Month.  In light of that proclamation, we’re highlighting a grievance case by a Foreign Service officer who downloaded and installed the Mozilla Firefox browser which potentially cost him a promotion.  The State Department proposed to issue him a Letter of Reprimand. The officer filed a grievance challenging the issuance of a Letter of Reprimand. For relief, he asks that the decision to impose discipline be rescinded and the discipline letter be removed from his Official Personnel File (OPF). In addition, he requests that the 2011 Selection Board’s decision to promote him be given immediate effect, and that he be reimbursed for attorney’s fees. The Department denied his grievance on March 13, 2012. He appealed that decision to the Foreign Service Grievance Board on May 14, 2012.  On December 2012, the Board found that grievant’s argument was without merit and sustained the proposed discipline.

This case is available publicly (pdf) from the newly relaunched fsgb.gov.  (BTW, the site is now searchable, yay!) As far as we are aware, the State Department still only allows two browsers for official use — Internet Explorer and more recently during Secretary Clinton’s tenure, Google Chrome was approved for department-wide use.   According to the browser stats maintained by w3schools.com, Internet Explorer’s downward use continues to hover around 12% in 2013, while Chrome continues to climb above 50 percent. Firefox’s usage remains at around the 27% mark.

Now some details on this case extracted from the record of proceeding:

Grievant, an FS-03 Officer, installed a software application, Mozilla Firefox Browser, on his workstation in August 2010. Grievant admitted that he installed the software because he was concerned that his savings accounts may have been the subject of identity theft and he wanted to check his credit union account on-line with what he thought was a safer web browser. The Mozilla software was found to be an executable application so that by downloading it grievant violated the Department’s Cyber Security Policy, and such action could have led to disruption of the Department’s cyber infrastructure. Grievant argued that he was unaware that the Mozilla Browser was an executable file when he installed it, and therefore, did not have the intent to violate the policy. The Board found that grievant’s argument was without merit and sustained the proposed discipline.

Anyone with questions about executable files should check the list here and best consult post’s information systems security officer (ISSO).

Also it might not be bad to get acquainted with 12 FAM 590 CYBER SECURITY INCIDENT PROGRAM if you haven’t already.

The government’s charge:

The Department charged the grievant with violating the directives and procedures for Cyber Security contained in 12 FAM 592.2b 8. The charge is based on grievant’s action in downloading the Mozilla Browser on his workstation on August 9, 2010. A revised cyber security program was implemented in 2007 throughout the Department. The Department asserts that grievant’s failure to comply with the cyber security policy could have resulted in damage or risk to the Department’s cyber infrastructure. The Mozilla Browser could compromise the integrity of the system and introduce a virus or malicious code.

Grievant was informed on December 22, 2010 by the Bureau of Diplomatic Security that the installation of the Mozilla Browser by him was a violation of the regulation. Grievant was further advised that the violation determination would be forwarded to the Bureau of Human Resources. Grievant was advised of his right to appeal the finding of a violation by the Bureau of Security, but chose not to do so. He did submit a Statement of Understanding acknowledging receipt of the December 22, 2010 letter and the Department’s security policies.

The Department dismisses grievant’s argument that his action in downloading the Mozilla browser required “mens rea” or a ”deliberate” act on his part to download an application that he knew was not authorized for installation. In his view, the Department has failed to prove that he made such a deliberate decision. He asserts that he did not actually know that the software was not authorized, and that his actions were inadvertent. He explains that he was ignorant that the software was an executable application that was not authorized. He states that he “lacked the knowledge of the difference between a search engine website and web browsing software.” He contends that the Department’s decision to not charge him with the downloading of the Shockwave program demonstrates that his action was not deliberate.

The FSO’s defense and argument:

Grievant has admitted that he installed Mozilla to assist himself with issues concerning his personal savings accounts. He could have used his personal computer to deal with the “spoofing” problems he was having with the possible identity theft matters. Finally, grievant should have reported the “spoofing” problems to the ISSO and checked with that office to determine if he could download Mozilla.

Grievant asserts that the proposed Letter of Reprimand should be rescinded because he lacked the intent necessary to violate the regulation. In 2009 – 2010, grievant was the victim of identity theft. He lost several thousand dollars to the thief, had to cancel his credit cards on two occasions, and was informed that his medical records were among those stolen from an Office of Medical Services database. On August 9, 2010, he received on his agency email four “spoofing” messages purporting to be from his credit union and his retirement fund.

Grievant was concerned that his savings accounts might have been stolen and his Department computer may have been compromised. He installed the Mozilla Firefox browser on his workstation instead of other browsers, such as Google, because he thought that Mozilla was a safer web browser. He was quickly informed by ISSO that Mozilla was not allowed to be downloaded on the Department’s system since it was an executable file. Grievant explained his concerns about his savings accounts and the reason that he downloaded the browser. He stated on several occasions that he did not know Mozilla was an executable file in violation of the regulation, and believed it to be a secure web-based browser. Grievant apologized and accepted responsibility for what he believed was an “inadvertent download of an executable file”.

Grievant argues that he should not be disciplined for downloading the Mozilla browser. In his view, the Department must show that it was his conscious object to download an executable file on to the Department’s network. He admits that his action was prohibited by the FAM, and that he exposed the Department to serious risk by downloading the browser on his workstation. However, he argues that the FAM requires specific intent to violate the regulation, which he did not have when the downloading took place. Grievant argues only deliberate acts, not negligent ones, are punishable under the regulation. He believes it is unjust to punish “a deliberate act that was believed would cause only a permissible result.” His action was negligent and he acted out of ignorance believing Mozilla to be a web based application rather than an executable file. In essence, he states that he believed that he was doing nothing more than accessing a website and that he lacked the knowledge required to make his action of downloading a deliberate violation of the regulation.

Grievant is remorseful and admits that he is fully responsible for his action. He did not know that he was downloading an executable file, and lacking that knowledge he did not have the mental state required by the regulation. Among other things, grievant asks that the decision to impose discipline be rescinded and the Letter of Reprimand be removed from his OPF. In addition, he asks that the Department give immediate effect to the 2011 Selection Board’s decision to promote him.

The FSGB was not persuaded:

Grievant intended to install Mozilla on his workstation. He engaged in a deliberate act. The fact that he was ignorant that it was an executable file in violation of the regulation does not obviate or lessen his culpability. As the Department points out, his action could have resulted in damage or significant risk to the Department’s cyber infrastructure, which could have caused major disruptions and loss of sensitive information. His admitted ignorance or lack of knowledge about Mozilla being an executable file does not excuse his action or his culpability for that action.

This is grievant’s first incident of any kind that caused him to be disciplined. As noted, his record is one of success and accomplishment. Grievant believes that discipline in this case is unjust. However, the proposed Letter of Reprimand is consistent with the penalties imposed in prior cases, and is reasonable under the facts of this case.

One related item, the agency’s cybersecurity was most recently in the news with a BuzzFeed exclusive report that the State Department Lacks Basic Cybersecurity. The report alleges that  “the State Department cable and messaging system, built and maintained — like the troubled ObamaCare system — mainly by large IT contractors, has routinely failed to meet basic security standards.” It further alleges that “There is hackable backdoor access to servers and the potential for spillage of classified information in the unclassified enclave.”  BuzzFeed says that it has  internal docs although those do not appear to be posted online at this time.  Read more here.

* * *

Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to Congress

In May, we posted about the case of FSO Joan Wadelton from Patricia Kushlis’ troubling blog post (see Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!).  Ms. Wadelton’s case made it to the FSGB’s 2011  Annual Report to Congress:

Appeal of Joan Wadelton. On January 7, 2011, Joan Wadelton, a Foreign Service Officer with the Department of State, filed a Complaint in the District Court for the District of Columbia, asking that it review the Board’s decision resolving a 2008 grievance appeal. Ms. Wadelton had filed three grievances prior to the 2008 appeal contesting the results of six selection boards which had not promoted her. As a result of those grievances, all six boards were reconstituted and Ms. Wadelton’s file was again reviewed for promotion. None of the six reconstituted boards promoted her. Ms. Wadelton then challenged the results of the reconstituted boards in the 2008 follow-on grievance. In its decision, the Board found deficiencies and irregularities in the operations of all six reconstituted boards, rebutting the presumption that they were conducted with regularity, and ordered that six new reconstituted selection boards be convened. Ms. Wadelton’s complaint challenges the Board’s decision to order a new round of reconstituted boards, rather than direct a promotion, as she had requested.

So Ms. Wadelton contested the results of the six selection boards, and State reconstituted all six boards.

Then Ms. Wadelton challenged the reconstituted boards, and FSGB ordered State too reconstitute six new selection boards.

The Grievance Board “found deficiencies and irregularities in the operations of all six reconstituted boards” so it ordered State, that is, the same HR Bureau to reconstitute six new selection boards.  Because that makes a lot of sense. It did not say if the deficiencies and irregularities were isolated to these six reconstituted boards or if they are systemic to the bureau and the process.

Hopefully the new boards are better at math so the promotion scorecards won’t be as messy, yes?  Or maybe, since this is now a case in the District Court for the District of Columbia, we’ll hear much more about the perplexing promotion scorecard process and how they get so messy.

Domani Spero